Rosipal v. Montgomery Ward

521 A.2d 49, 360 Pa. Super. 570, 1987 Pa. Super. LEXIS 7125

• Court: Supreme Court of Pennsylvania
• Decided: February 12, 1987
• Docket: 00386
• Status: Published

Opinions

CAVANAUGH, Judge:

In this case, the appellee, Joann Rosipal, was allegedly injured on the job while an employee of the appellant, Montgomery Ward. The appellant filed a notice of compensation payable and initiated wage indemnity payments. Subsequently, the appellant filed a petition for termination of compensation under the Workmen’s Compensation Act. The petition was supported by a physician’s affidavit of recovery. Following several hearings before a workmen’s compensation referee, the referee held that the appellee had sustained a work related injury and her compensation benefits were reinstated.

The appellee then commenced a civil action in Allegheny County alleging economic duress, intentional infliction of emotional distress, procuring a “false, fraudulent and perjured affidavit” and breach of compensation agreement. The appellant filed preliminary objections in the nature of a demurrer which were dismissed by the court below. The court refused to certify the interlocutory order to this court. On March 14, 1986, this Court granted the appellant’s petition for review which permits us to consider the merits of the underlying appeal. Toll v. Toll, 293 Pa.Super. 549, 439 A.2d 712 (1981).

The Pennsylvania Workermens’ Compensation Act, 77 Pa.C.S. § 481, provides that the “liability of an employer under this Act shall be exclusive and in place of any and all other liability to such employees ...” The Act further provides in § 511 that payment of compensation is not required after disability shall cease. It is further provided in § 772:

A referee designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department or its referee, upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or that the status of any dependent has changed.

The appellant complied with the statute in petitioning to have the compensation terminated. If there were a defense to the petition to terminate, the appellee had the opportunity to raise it in the proceedings before the referee and, in fact, she did prevail.

The Workmens’ Compensation Act covers all injuries and the exclusivity clause in 77 Pa.C.S. § 481 bars all civil actions flowing from work related injuries. Kline v. Arden H. Vemer Co., 503 Pa. 251, 469 A.2d 158 (1983); Christ-man v. Dravo Corp., 319 Pa.Super. 378, 466 A.2d 209 (1983).¹ The court below in overruling the appellant’s demurrer, concluded that the appellee’s claim “did not arise from an employment related accident such as would be covered by the Workmen’s Compensation Act.”² We disagree with this analysis as the underlying factor in the present action is the alleged injury suffered by the employee while she was acting as a security guard. In the absence of the injury, there would have been no workmen’s compensation proceedings out of which the instant civil action arose.

We turn our attention to the issue of whether the complaint filed below set forth a cause of action. Preliminary objections in the nature of a demurrer admit as true all well pleaded factual averments and all inferences fairly deducible therefrom, but not conclusions of law. It is in this light that the complaint must be examined to determine whether it sets forth a cause of action which, if proved by the appellee, would entitle her to the relief she seeks. A preliminary objection in the nature of a demurrer is properly sustained where the complaint has failed to set forth a cause of action. Cunningham v. Prudential Property & Casualty Insurance Co., 340 Pa.Super. 130, 489 A.2d 875 (1985).

The Complaint alleged in Count I that the appellant caused her “economic duress” by intentionally and knowingly terminating workmen’s compensation benefits.³ Count II alleged that the appellant intentionally and knowingly terminated workmen’s compensation benefits to the appellee in order to cause her extreme and severe and emotional distress.⁴ Count III alleges that the appellant wilfully and maliciously caused a “false, fraudulent and perjured affidavit” to be taken to the Petition to Review Nature of Compensation Agreement. Finally, Count IV alleged that the appellant breached the compensation agreement. All of these allegations relate to the workmen’s compensation proceedings in which the appellant followed the procedure set forth in the Act. It is not claimed that the appellant failed to comply with the provisions of the Workmen’s Compensation Act, nor that it failed to pay all of the benefits it was required to under the Act. The appellee has failed to state a cause of action in her complaint as all of the allegations have as the ultimate basis an injury compensable under the Workmen’s Compensation Act and her claims must be considered within the framework of the Act. It is the duty of the plaintiff to set forth the material facts on which the cause of action is based and no cognizable cause of action has been set forth in this complaint. See Pa.R.C.P. 1019. It is not the duty of this court to construct a cause of action for the plaintiff.

Order reversed. The appellant’s demurrer is sustained and the complaint is dismissed.

JOHNSON, J., files a dissenting opinion. Before CAVANAUGH, WIEAND and JOHNSON, JJ.

1 . In Higgins v. Clearing Machine Corp., 344 Pa.Super. 325, 496 A.2d 818 (1985) we noted in footnote 5 that the issue as to whether an employer is insulated by the Workmen’s Compensation Act from intentional, wanton and wilful misconduct to be unsettled in this Commonwealth. However, in a decision by the Court of Common Pleas of Allegheny County, Pingieleski v. United Parcel Service, 133 Pittsburgh L.J. 342 (1985) affirmed per curiam, 344 Pa.Super. 325, 508 A.2d 346 (1986) it was held that even if it is alleged that an injury was intentionally caused by the employer, the injury would be compensable solely under the Workmen’s Compensation Act.

2 . The court below relied on the case of Reed v. Hartford Accident and Indemnity Co., 367 F.Supp. 134 (E.D.Pa.1973) as being analogous to our case. The Reed case is not applicable as it involved a claim by an employee against his employer’s insurance carrier. The court noted at 367 F.Supp. 135: "This present action is based on Hartford’s alleged independent intentional torts and breach of their agreement, unrelated to Reed’s employment ... [Tjhis is a completely independent cause of action, arising out of the relationship between insured and insurer qua insurer.”

3 . Appellee alleged in paragraph 18 of her complaint:

18. On August 8, 1983, MONTGOMERY WARD AND Aetna filed a petition for Termination of Compensation alleging that the claimant fully recovered from the injury on July 25, 1983. An automatic supersedeas was invoked as a physician’s affidavit of recovery accompanied this Petition.

4 . The Workmen’s Compensation Act provides for improper suspension of benefits and provides:

§ 774.1. Improper suspension, etc. of payments; penalty

Any insurer who suspends, terminates or decreases payments of compensation without submitting an agreement or supplemental agreement therefor as provided in section 408,¹ or a final receipt as provided in section 434,² or without filing a petition and either alleging that the employe has returned to work at his prior or increased earnings or where the petition alleges that the employe has fully recovered and is accompanied by an affidavit of a physician on a form prescribed by the department to that effect which is based upon an examination made within fifteen days of the filing of the petition or having requested and been granted a supersedeas as provided in this section, shall be subject to penalty as provided in section 435.